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BOROUGH THROOP AND HOME INDEMNITY CO. v. WORKMEN'S COMPENSATION APPEAL BOARD AND JOAN LEEK MERVA (03/05/75)

decided: March 5, 1975.

BOROUGH OF THROOP AND HOME INDEMNITY CO., INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JOAN LEEK MERVA, WIDOW OF JOSEPH MERVA, DECEASED, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joan Leek Merva, Widow of Joseph Francis Merva, deceased, v. Borough of Throop, No. A-67676.

COUNSEL

Joseph A. Murphy, with him John R. Lenahan, and Lenahan, Dempsey & Murphy, for appellants.

Ralph P. Needle, with him Jacob Nogi, Needle & Needle, and James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 17 Pa. Commw. Page 522]

Appellee, Joan Leek Merva, is the wife of Joseph Merva, decedent, who was the police chief for the Borough of Throop (Appellant). Joseph Merva had been on the borough police force for more than 17 years when on April 10, 1972, he was dispatched to the scene of a serious automobile accident in which five persons were injured and one man was trapped in his vehicle. The chief, being the only person on the scene, proceeded to pry the car door open in order to extricate the victim, direct traffic, administer first aid to the injured and to otherwise assist the ambulance crews on the scene. Testimony established that the chief was at the scene of the accident from 3:40 P.M. until 5:00 P.M. when he returned to the police station at which time he was described as looking pale and haggard. Sometime after 10:00 P.M. the chief, upon returning home, complained of chest pains and lack of appetite. Although he was unable to go to work the following day, he did return for two days during which he conducted his normal routine. Six days after the collision, he died.

[ 17 Pa. Commw. Page 523]

The referee found as fact that "as a result of extreme overexertion at the scene of the accident, the decedent suffered a myocardial infarction [and] died on April 16, 1972 . . . due to overexertion," and concluded as a matter of law that the "death was due to accidental injury in the course of his employment." Before us now is the appeal of the employer, Borough, following the Board's affirmance of the referee's findings of fact and conclusions of law.

"In a workmen's compensation case where the Board took no additional evidence and the party with the burden of proof [here claimant-appellee] prevailed before the referee, our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or any necessary finding of fact found by the referee was unsupported by sufficient competent evidence." Williams v. San Giorgio Macaroni, Inc., 13 Pa. Commonwealth Ct. 386, 388, 317 A.2d 434, 435 (1974).

Appellant argues that Appellee failed to meet her burden of establishing by competent evidence that her husband's work preceding his death involved unusual strain or exertion which, in turn, led to the death. We must disagree. In Muser v. I.B.M. Corporation, 13 Pa. Commonwealth Ct. 12, 16, 317 A.2d 352, 354 (1974), Judge Kramer ably set out the law with regard to the unusual strain doctrine when he stated: "[u]nder this doctrine there can be no recovery unless the claimant proves that the death or injury resulted from an overexertion or unusual strain encountered in the course of the employment" and that the "doctrine is to be applied according to the work history of the individual involved and not according to the work pattern of his profession in general."

The record before us is replete with testimony describing the chief's unusual activities which allegedly caused the strain that night of the accident and its ultimate consequences. Competent evidence abounds from

[ 17 Pa. Commw. Page 524]

    which the referee could have found as fact that the accident ...


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